Roosevelt v. Ulmer

WiNsnow, J. The defendants were nonresidents, and personal service was made upon them outside the state, under an order of publication, and the question is whether jurisdiction was obtained. It is claimed that jurisdiction was not obtained because (1) the complaint was not properly verified; (2) it did not appear by the affidavit or the complaint that the defendants had property within this state,, nor that the cause of action arose therein; (3) the order of publication required the first publication of the summons to be made three months from the date of the order, and that [358] the summons be mailed “on or about” the day of the first publication. 1. The statute (E. S. 1818, sec. 2666) requires that, when ■a pleading is verified by an agent, he shall set forth in the affidavit his knowledge or the grounds of his belief on the •subject, and the reasons why it is not made by the party. It is objected in the present case that the verification does not set forth the agent’s knowledge or his grounds of belief. 'The action is to recover instalments of rent upon a lease. 'The verification shows that the deponent had acted as agent for the plaintiff in collecting the rents for several years, and collected a considerable amount of the rents due from the defendants. These facts would almost necessarily place the agent in possession of the material facts with regard to the lease and its terms and the payments made. The principal allegations of the complaint are made upon knowledge, and we think that these statements sufficiently show the agent’s knowledge. As to the allegations made upon information and belief, the affidavit states, in effect, that the grounds of his belief are founded upon and derived from such transactions wherein he was the plaintiff’s agent. This seems to us quite a satisfactory showing, and we regard it as sufficient. 2. The facts required to exist in order to authorize service by publication must appear in the complaint and the affidavit of publication taken together. E. S. 1818, sec. 2640. 'This is plainly a jurisdictional requirement, and must be •ptrictly complied with. Anderson v. Coburn, 27 Wis. 558; Barber v. Morris, 37 Minn. 194; Cummings v. Tabor, 61 Wis. 185. In the present case it was not alleged in the complaint nor in the affidavit for publication either that the defendants had property within this state or that the cause of action arose therein. R. S. 1878, sec. 2639, subd. 1. One of these facts must appear in -order to justify an order of publication under subd. 1; and it is not claimed that a case was made under any of the other subdivisions. The conclu [359] sion necessarily follows that no order of publication could be made, and that, if made, no jurisdiction was acquired by service under it. 8. The order was also defective and void because it did not comply with the statute in vital particulars. The statute says (sec. 2640, E. S. 1878): “ The order shall direct that service of the summons be made by its publication in a newspaper, . . . not less than once a week for six weeks, and that, on or before the day of the first publication,” a ■copy be deposited in the post office, etc.; also, “ the first publication must be made within three months from the ■date of such order.” By some strange inadvertence, the order in the present case required that the first publication be made “three months from the date of the order,” and that, “ on or about the date of the first publication,” the summons be mailed. This is certainly too wide a departure from the plain requirements of the law to be sustained in a jurisdictional proceeding where strict compliance is necessary. The terms of the order might be literally complied with, and the terms of the statute violated. By the Oourt.— Order reversed, and action remanded with directions to vacate the judgment and set aside the attachment and all subsequent proceedings.